Subpoena? You don't always have to comply

Not all subpoenas carry the same weight, and turning over records without the patient's permission could land you in trouble.

Getting served with a subpoena has got to rank among the scariest things a doctor can face. But don't let your fear prompt you to violate patient confidentiality. In New Jersey, an appellate court has ruled that doctors can be held liable for disclosing medical records in response to a subpoena without the patient's consent.

In May 1997, Antoinette Santora saw FP Walter Crane for a head injury, which she attributed to a fall. During that visit and subsequent ones, she discussed her deteriorating marriage and various stress related symptoms. Crane, who practices in Hammonton, NJ, diagnosed depression and prescribed an antidepressant.

A year later, Santora filed a domestic violence complaint against her husband, alleging, among other things, that he had caused her head injury. In response, her husband's lawyer, Robert Pinizzotto, served Crane with a subpoena duces tecum ordering him to appear at his office the following week with "any and all records relating to Antoinette Santora." The document warned: "Failure to appear according to the command of this Subpoena, will subject you to a penalty, damages in a Civil Suit, and punishment for contempt of Court."

In a cover letter accompanying the subpoena, Pinizzotto offered another option: If Crane sent the records to the lawyer's office, he would not have to appear in person. Crane claims that he tried to contact Santora to get her authorization to release the records, but that she had moved and left no forwarding address.

Crane then sent Santora's records to Pinizzotto, who attempted to introduce them in the domestic violence case. Santora objected, claiming she hadn't authorized their release. She also claimed that her husband planned to use them in a separate divorce and child custody case as evidence of her lack of fitness as a parent.

Santora (under her maiden name, Crescenzo) sued Crane in January 2000, accusing him of breach of confidentiality, violation of the physician-patient privilege, medical malpractice, and negligent infliction of emotional distress. She also sued Pinizzotto for obtaining her records in violation of court rules.

Crane moved for dismissal, arguing that Santora had no cause of action against him. The trial judge agreed, and dismissed her suit. He ruled that if the records were eventually admitted as evidence in the case, they would therefore be discoverable, and thus no harm would be caused by their release. As he put it, using a basketball analogy, "No harm, no foul."

An appellate court upholds patient confidentiality

Santora appealed, and in a decision handed down in May 2002, the appellate court overruled the trial judge's dismissal. It held that Santora had a "viable claim" against Crane and Pinizzotto, her husband's attorney. If Santora's allegations were true, the appellate judges ruled, then Crane and Pinizzotto had violated New Jersey's court rule governing discovery subpoenas. One of the rule's purposes, the court noted, is to "permit adversaries an appropriate opportunity to challenge the propriety of such discovery." Among the rule's restrictions:

 A subpoena to produce evidence for discovery may be issued only to a person whose attendance at a deposition is required.

 The subpoena must state that the evidence will not be produced or released until the date of the deposition.

 The subpoena must be simultaneously served on the witness and on all parties to the case at least 10 days before the scheduled deposition.

 At the deposition, those parties must have the right to inspect the subpoenaed evidence.

In this case, Pinizzotto's subpoena gave Crane only five days notice before the scheduled appearance; he also failed to send a notice of the subpoena to Santora or her attorneyas required by the court rule. (Pinizzotto says he had to obtain the records quickly because the court had scheduled a hearing on the case six days later. He also claims that he did send a notice to Santora's original attorney, but she had changed lawyers by then.)

The purpose of the notice is to provide the opposing side an opportunity to object to the release of the subpoenaed records. In adopting the rule, the judges explained, the state's high court had "established a procedure that balances the rights of all concerned, and affords each interested party an opportunity to test the bona fides of the subpoena and ultimately the admissibility of the records."

The judges also cited New Jersey state regulations and the AMA's ethical guidelines, both of which limit a physician's right to release patient records in response to third-party subpoenas.

The appellate judges took note of Crane's argument that he could have been held in contempt if he'd failed to produce the records. The judges rejected that argument, pointing out that Crane could have protected himself by notifying Santora of the request for her records and obtaining her authorization before releasing them. Failing that, he could have contacted the attorney serving the subpoena, or consulted his own attorney for advice.

"The power and authority to secure records is a profound one that must be exercised carefully," the appellate judges concluded. "Failing to do so, those in violation must bear the consequences, which may include the award of damages."

In this case, however, Santora was unable to establish damages caused by the release of her records, so the judge ultimately dismissed her suit.

Be cautious when responding to a subpoena

Ed Kasselman, the Lakewood, NJ, attorney who represented Santora in this case, advises doctors to educate themselves on their legal obligations regarding the confidentiality of medical records. As he explains, "They're not likely to get in trouble for releasing records if they do so in response to a properly issued subpoena, and if they have the patient's authorization."

But according to Steven Kern, a Bridgewater, NJ, healthcare attorney, "It's a mistake to assume that a lawyer's subpoena has the force of law. Unless it's a court order signed by a judge, a lawyer's subpoena may have no legal authority if it's seeking privileged medical records."

"First," Kern explains, "you may not be obliged to release them. Second, you are obliged to protect the confidentiality of the doctor-patient relationship. If you release them without the patient's authorization, it can result in a civil suit by the patient, or disciplinary action by the state medical board."

No matter how official it appears, says Kern, a subpoena duces tecum is simply an attorney's request for documents. It may be signed and issued by the attorney as "an officer of the court." But unless otherwise indicated, it has not been issued, reviewed, or approved by a judge, and therefore does not have the authority of a court order. If a doctor refuses to release the records, the attorney must then petition a judge to issue such an order compelling the doctor to produce them. Even then, a signed release from the patient is advisable.

The Federal HIPAA Privacy Rule (which was issued after the New Jersey case was filed) permitsbut doesn't requirethe release of medical records in response to a subpoena, but only if the patient is notified first. That HIPAA rule also permitsbut doesn't requirephysicians to disclose records without the patient's authorization in response to a court order in a judicial proceeding.

In many states, a lawyer's subpoena for medical records generally has no legal power until a lawsuit has been filed in court. Until then, a subpoena requesting records may amount to a "fishing expedition," which means there's no obligation to provide them unless the patient agrees. Even after the case has been filed, the records should be turned over only if you have a release signed by the patient, ideally within the past six months. (You should also have a HIPAA form signed by the patient.) And turn over copies, not originals.

If you're subpoenaed to bring the records with you to a deposition, a patient release may be unnecessary if the patient's lawyer is present, since he'll have an opportunity to object to their disclosure on the patient's behalf.

Sometimes you do have to hand over records

The accompanying article highlights the legal risk in releasing medical records in response to a judicial proceeding without the patient's consent. In some situations, however, particularly state medical board investigations, you may have to release them. In one such case, former Baltimore internist Barbara Solomon lost her license for refusing to comply with a state medical board's subpoena demanding her records.

In December 1999, in response to a patient complaint involving Solomon's unusual diagnostic techniques, the Maryland Board of Physician Quality Assurance issued a subpoena demanding 19 of her charts. Solomon refused, claiming that disclosing her patients' records without their consent would violate their privacy.

(About the same time, some of those patients filed a petition in state court seeking an injunction to prevent the board from seizing their records. Their petition was eventually denied on the grounds that patients have no veto power over subpoenas issued as part of a state board investigation.)

When Solomon persisted in refusing to turn over the records, the Board charged her with failure to cooperate with a lawful investigation. After a hearing in November 2000, an administrative law judge recommended that her license be revoked.

In March 2001, after conducting its own hearing, the Board agreed, and revoked Solomon's license. "Without medical records which document the medical care she is rendering," the Board members concluded, they would be "completely unable to fulfill [their] mission to protect the public."

Solomon sued in state court, seeking to reverse the board's revocation order, but the judge upheld it. In June 2002, she finally gave the subpoenaed records to the Board with her application for reinstatement, but her license remains revoked.

Solomon then appealed her revocation to the state appellate court, reiterating her argument that releasing records without patients' consent would violate state regulations protecting patient confidentiality. In a December 2003 decision, however, the appellate judges pointed out that the state's Confidentiality of Medical Records Act specifically permits the release of patient records without their consent in response to a subpoena issued in the course of a medical board investigation.

In her defense, Solomon also cited HIPAA regulations on patient confidentiality. But the appellate judges noted that the HIPAA Privacy Rulewhich wasn't in effect when the board issued its subpoenadoesn't apply to disclosure of medical records in response to a state medical board proceeding or investigation.

In upholding Solomon's revocation, the appellate judges cited an Ohio Supreme Court opinion in a similar case: "The public interest in facilitating a medical board's investigation of alleged physician misconduct outweighs the interests to be served by invocation of the physician-patient privilege."